CML 4114JD Comparative Legal Systems

Transcription

1 CML 4114JD Comparative Legal Systems 01 purposes and methods Lehrstuhl für Common Law und Vergleichende Rechtstheorie

2 books on reserve The Oxford Handbook of Comparative Law (Reimann and Zimmermann eds.) Bell, Judiciaries within Europe: A Comparative Review David and Brierley, Major Legal Systems of the Worlds Today Ehrenzweig, Psycholanalytic Jurisprudence Glenn, Legal Traditions of the World MacCormick and Summers, Interpreting Precedents: A Comparative Study Merryman, The Civil Law Tradition Zweigert and Kötz, An Introduction to Comparative Law

3 additional books recommended (in German) Constantinesco, Léontin-Jean: Rechtsvergleichung, 3 Bände David, René / Jauffret-Spinosi, Camille / Grasmann, Günther: Einführung in die großen Rechtssysteme der Gegenwart Großfeld, Bernhard: Kernfragen der Rechtsvergleichung Rainer, Michael J.: Europäisches Privatrecht. Die Rechtsvergleichung Sacco, Rodolfo: Einführung in die Rechtsvergleichung [Zweigert, Konrad / Kötz, Hein: Einführung in die Rechtsvergleichung]

4 lecture topics and suggested readings Mon, 5 Jan: purposes and methods; legal families (main sources Pierre Legrand, "John Merryman and Comparative Legal Studies: A Dialogue," 47 Am. J. Comp. L. 3 (1999); Zweigert and Kötz; Glenn) Tues-Wed, 6-7 Jan: lawyers (David and Brierley; Zweigert and Kötz) Thurs, 8 Jan: judiciaries (Bell; Merryman, The Civil Law Tradition) Fri, Mon, 9 Jan, 12 Jan: lay judges and jurors Tues, 13 Jan: parliaments and forms of state (Zweigert and Kötz; Merryman, The Civil Law Tradition) Wed-Thurs, 14-15: legislation (Zweigert and Kötz; Merryman, The Civil Law Tradition) Fri, Mon (16 Jan, 19 Jan): judicial precedents (MacCormick and Summers, Interpreting Precedents) Tues, 20 Jan: legal philosophy (Ehrenzweig) Wed, 21 Jan: law and language

5 evaluation/exam a ( major ) paper worth 100% 5,000 10,000 words, excluding footnotes and bibliography (25-35 pages)

6 general topics for exam papers lawyers historial developments professional role(s) future developments judiciaries lay judges and juries parliaments and forms of state legislation judicial precedents legal philosophy law and language

7 John Henry Merryman dialogue with Pierre Legrand

8 John Henry Merryman BS, University of Portland 1943 MS Univesity of Notre Dame 1944 JD, Notre Dame Law School 1947 LLM, NYU 1951 JSD NYU 1955

9 JHM criticizes rule-based comparative studies the value of "rule comparison" as a source of explanation is small rule-based comparative study `has been exclusively rulecentered` because it `has been dominated by European legal theory [and is] merely a logical extension of continental legal science.`

10 JHM criticizes rule-based comparative studies Merryman criticizes the Italian basic reverence for the mastery of legal science, of the tools, the vocabulary of German legal science.... Italians [are] more German than the Germans.

11 JHM criticizes rule-based comparative studies Take German law. Here is a legal system that, in its operation, is dominated by judges. What may be the most significant part of the German legal education process, the Referendarzeit, is dominated by judges. To argue that the product of judicial work is irrelevant or inappropriate to legal education is again to exhibit a rule-centered way of thinking about law. Traditional comparative law focuses on the BGB, but the vital force in German law comes from the judicial system. Since the Germans established their federal constitutional court, this has become more and more apparent. Everyone pays attention to what the constitutional court does, and the influence of its power trickles down to the lower courts. Judicial decisions are where crucial decisions about German law are made.

12 JHM criticizes rule-based comparative studies Strictly speaking, what passes as comparative law in American casebooks and much American scholarship is most often foreign law in the sense that it is merely descriptive of foreign legal actors, foreign legal institutions, foreign legal processes, and so on. To the extent that there is any comparison, it is there primarily to aid in description. There is really very little of what we could call "real" comparison going on.

13 JHM advocates non-rule-based research

14 JHM advocates non-rule-based research one purpose of first-year law classes is to teach students to think like [American] lawyers what does this mean? where one finds "the law" what the law is what is the purpose of law how to use the law how to criticize the law

15 JHM advocates non-rule-based research How easy would it be for an American to become a full member of a French or German law faculty? What European law faculty would invite an American to come there as a full-time professor? It is just not likely to happen.

16 JHM advocates non-rule-based research Anything you can do that is an alternative to the anecdotal, lowlevel kind of thing that one sees so much of in comparative law is useful. One of these alternatives certainly is the idea of comparing not the legal rules, which are social demands on the legal system, but the underlying reality of the legal system, the institutions, actors, and processes, what I call "the law machine." Treating law as a social sub-system is a way of studying that is likely to be productive and is a direction in which it would be useful for comparative law to go. Another alternative is comparative legal culture. Where do ideas come from, how have they developed, how have they been employed? This is also a useful kind of comparative legal study.

17 JHM advocates non-rule-based research The alternative is to... seize the opportunity to enlarge one's comparative scope and treat "law" not as a set of norms, but as a complex and dynamic social sub-system with deep historicalcultural dimensions.

18 JHM advocates non-rule-based research I push rather hard for the proposition that one who is going to be a comparative lawyer should become thoroughly familiar with a given foreign legal system. Not just the doctrinal part, not just the rules, and so forth, but the way it works--the whole fabric.

19 JHM: legal tradtion a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught.

20 JHM: civil law tradition There was some French unhappiness with my suggestion that contemporary French law is not typical of the civil law tradition, but it demonstrably is not typical. Interesting and important, yes, but typical, no. Where, among the dozens of contemporary civil law systems, will you find anything equivalent to the tortured French approach to constitutional review of legislative, administrative, and judicial action? Where else, among the many high courts in civil law nations, does one find anything similar to the constipated way decisions of the Cour de cassation are stated and justified?

21 JHM: civil law tradition There have also been a few murmurs of protest at my suggestion that German law is atypical, but again, it clearly is not. Interesting and important, yes, but typical, no. How many civil law nations have chosen to follow the German legislative model? How many other civil law nations employ anything remotely resembling the Referendarzeit in the professional formation of their lawyers and judges? What features of modern German law have been widely adopted or emulated among other civil law nations? Nineteenthcentury German legal thought is extremely interesting. It arose, among other things, as a reaction against what Savigny and others perceived to be the excesses of French rationalism, but it was much, much more.its systematic and formalist aspects were at one time the subject of intense scholarly debate and produced an extensive literature. This is the principal contribution of modern German law to the civil law tradition.

22 JHM on judicial cases We have already touched on the misguided assumption that Americans study cases because for us the law is in the cases rather than in the statutes. But case study is a very inefficient way to learn rules of law. We study cases because they are culturally rich and become because they show the legal process--the "law machine"--in action, in a way that theoretical works and student manuals can not. Cases are repositories of legal culture.

23 purpose of comparative law Ernst Rabel (d. 1955): Comparative law is concerned with the questions of similarities, differences, and the mutual influence between legal systems (Rechtsordnungen)

24 purpose of comparative law Jerome Hall (d. 1992): comparative analysis of law is concerned with the delineation of differences against a background of similarities.

25 purpose of comparative law Arthur von Mehren (d. 2006) refers to the range and complexity of the differences that can lie behind a facade of similarity between legal traditions.

26 purpose of comparative law Sir Basil Markesinis argues that we must try to overcome obstacles of terminology and classification in order to show that foreign law is not very different from ours but only appears to be so.

27 purpose of comparative law Zweigert and Koetz: comparative legal studies helps to deepen our belief in the existence of a unitary sense of justice, and points to the universality of legal science and the transcendent values of law.

28 F.H. Lawson (d. 1983): One can be a very much better English lawyer for knowing some French law.

29 purpose of comparative law Merryman: Perhaps what you really are talking about is attitude. If you set out to find differences, you will find them. If you set out to find similarities, you will find them.

30 JHM on equity and justice Lawyers, at least common law lawyers, have a basic and continuing concern for equity, not merely because of the historic existence in the common law of equity courts and equity jurisprudence, but because their education requires them to face and deal with the justice of the individual case.

31 JHM on German legal science What is "unusual in the extreme" in the common law world is the attempt too build a general theory of law. There is no admired and influential common law equivalent of German legal science. But there has been a great deal of the "common core" kind of thing in the United States: Williston, Wigmore, Restatements of the Law, etc.

32 puposes of comparative legal studies

33 historical development 1869 Société de législation Compareé founded 1900 first congress of the Société the basis for all law was to be found in the rules arising from common laws The purpose of comparative studies was to identify these common rules 1924 Internationale Akademie für Rechtsvergleichung founded The main purpose of the Akademie is to concern itself with historical aspects of compartive law... and with the improvement of the laws of the various countries of the world by conquering differences and harmonising them. 1991: The purpose of the Akademie is the compartive study of legal systems.

34 Article 38 Statute of the Court of International Justice (1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law, (2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

35 jura novit curia The German judge is expected to know German law, including case-law, doctrine, German IPL, as well as the law of his state (Land), as long as it is formal statutory law. If the law does not know the law, he is to determine it on his own initiative (BGH 77, 38 mwn (auch zu den Grenzen dieser Pflicht) und NJW 84, 2764, BGH v XII ZR 73/89, Fam RZ 90/=NJW 1990/2886) [the source and influence of this doctrine will be discussed later in the lecture on legal philosophy]

36 293 Zivilprozessordnung Fremdes Recht; Gewohnheitsrecht; Statuten Das in einem anderen Staat geltende Recht, die Gewohnheitsrechte und Statuten bedürfen des Beweises nur insofern, als sie dem Gericht unbekannt sind. Bei Ermittlung dieser Rechtsnormen ist das Gericht auf die von den Parteien beigebrachten Nachweise nicht beschränkt; es ist befugt, auch andere Erkenntnisquellen zu benutzen und zum Zwecke einer solchen Benutzung das Erforderliche anzuordnen. Foreign law; customary law; statutes The law of another country, the customary law and statutes, need only be proved to the extent these are unknown to the court. In determining these legal rules, the court is not limited to the evidence adduced by the parties; it is authorized to use other sources and to order what is necessary to such use.

37 jura novit curia not (directly) part of German statute law Can be argued that it is indirectly by negative implication (Rückkehrschluss)

38 purposes (according to Zweigert/Kötz) aid to the legislature aid to courts interpreting statutes importance to university education making law uniform development of a common (general) law (such as common principles or core principles)

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46 summary of purposes knowledge of foreign law improvement of law (and its application) harmonisation, uniformity Principles of European Contract Law Unidroit Principles of International Commercial Contracts lex mercatoria? identifying universals

47 Rodolfo Sacco: The need to justify comparison in law by an appeal to its practical use can verge on the ridiculous.

48 methods of comparative legal studies

49 methods of comparative legal studies comparing terms (Begriffsvergleich) comparing rules (Normenvergleich) functional comparison (Mikrovergleich) sytematic studies (Makrovergleich) theoretical comparisons

50 Begriffsvergleich 211 Mord StGB (1) Der Mörder wird mit lebenslanger Freiheitsstrafe bestraft. (2) Mörder ist, wer aus Mordlust, zur Befriedigung des Geschlechtstriebs, aus Habgier oder sonst aus niedrigen Beweggründen, heimtückisch oder grausam oder mit gemeingefährlichen Mitteln oder um eine andere Straftat zu ermöglichen oder zu verdecken, einen Menschen tötet. 187 California Penal Code 1. Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. 2. [A legal abortion does not constitute murder.)

51 Normenvergleich 211 Mord StGB (1) Der Mörder wird mit lebenslanger Freiheitsstrafe bestraft. (2) Mörder ist, wer aus Mordlust, zur Befriedigung des Geschlechtstriebs, aus Habgier oder sonst aus niedrigen Beweggründen, heimtückisch oder grausam oder mit gemeingefährlichen Mitteln oder um eine andere Straftat zu ermöglichen oder zu verdecken, einen Menschen tötet. 190 California Penal Code (a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.

52 188. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree. As used in this section, "destructive device" means any destructive device as defined in Section 12301, and "explosive" means any explosive as defined in Section of the Health and Safety Code. As used in this section, "weapon of mass destruction" means any item defined in Section To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.

53 Funktionaler Vergleich Strafaussetzung zur Bewährung vom Gericht Begnadigung vom Bundespräsidenten oder Ministerpräsidenten eines Bundeslandes Kann eine Begnadigung widerrufen werden? Straferlass (commutation of sentence) vom California Board of Parole Hearings Begnadigung (pardon) vom Gouverneur (nicht vom Präsidenten)

54 RAF-Terrorist Christian Klar wurde wegen mehrerer Morde und Mordversuche zu siebenmal lebenslang plus 15 Jahren verurteilt Nach 24 Jahren im Gefängnis stellte er ein Gnadengesuch Bundespräsident Horst Köhler lehnte Klars Gnadengesuch nach einer persönlichen Anhörung ab

55 Funktionaler Vergleich 151 BGB Der Vertrag kommt durch die Annahme des Antrags zustande, ohne dass die Annahme dem Antragenden gegenüber erklärt zu werden braucht, wenn eine solche Erklärung nach der Verkehrssitte nicht zu erwarten ist oder der Antragende auf sie verzichtet hat. Der Zeitpunkt, in welchem der Antrag erlischt, bestimmt sich nach dem aus dem Antrag oder den Umständen zu entnehmenden Willen des Antragenden California Civil Code A contract is an agreement to do or not to do a certain thing California Civil Code. It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration.

56 theoritical comparisons orality/written legal culture Legal certainty/individual justice (Einzelfalljustiz) nationalisation/privatisation case-law (Richterrecht)/professorial law (Professorenrecht)

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